In Depth

Even though the trial court erred in excluding an ex-husband’s offer of evidence of communications during a settlement
agreement following his divorce to establish a mistake occurred in drafting the agreement, the error was harmless, the Indiana
Court of Appeals ruled. This case raised an issue of first impression regarding whether communications during mediation can
be used as extrinsic evidence.

In Dennis Jack Horner v. Marcia (Horner) Carter, No. 34A02-1111-DR-1029, Dennis and Marcia Horner,
now Marcia Carter, divorced after more than 30 years of marriage. They entered into a mediated settlement agreement in which
Horner would pay $550 a month toward the purchase of a new residence for Carter, which was outlined in the “real estate”
section of the agreement. Under the “maintenance/support” section, Horner was to pay Carter either $500 or $600
a month until a modification of the court or death of Carter. If she remarried, this maintenance would end. Carter eventually
remarried; Horner stopped paying the maintenance, but continued to pay toward her housing for several years. Carter and her
new husband lived in the Horners’ former home and paid Horner $660 a month. Eventually they stopped making monthly payments
and were evicted.

Horner stopped making the housing payments to Carter because he thought it was maintenance. He argued that there was an error
in communications during their mediation, which he wanted to introduce at a hearing to show there was a mistake in the agreement.
He claimed he communicated to his attorney that all payments to his ex-wife would stop once she was married. She argued they
agreed he would continue to pay her housing because she agreed to give up any interest in his pension. The trial court ruled
in favor of Carter and declined to allow Horner to testify as to what was said during mediation.

The Court of Appeals concluded that the settlement agreement is ambiguous, so it may consider extrinsic evidence. But the
issue isn’t whether Horner can offer this evidence, it’s whether that evidence can be communications that happened
during mediation, something the Court of Appeals has yet to answer.

Citing Alternative Dispute Resolution Rule 2.11 and Indiana Evidence Rule 408, the judges concluded Horner should have been
allowed to introduce the mediation communications as evidence. He sought to offer this evidence to establish that a mistake
occurred in drafting the agreement, which would not be excluded under Rule 408. Only evidence that is offered to prove “liability
for or invalidity of the claim or its amount” is excluded.

But it was a harmless error, the judges held, because Horner did testify to communications that happened during mediation
and his statements fall far short of establishing any mistake that may entitle him to relief, wrote Judge Nancy Vaidik.

The COA also upheld the finding that the housing payment provision is for a property settlement. Even though that provision
has characteristics that resemble maintenance, it was placed under the “real estate” portion of the agreement,
and the parties did not expressly provide that this provision was subject to modification. Plus, Horner did not seek to modify
his housing payments when Carter remarried in 2007, only his maintenance payments.

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